Redmond, Washington – Microsoft Corporation (NASDAQ: MSFT) is taking action against a law that allows courts to ban the tech firm from alerting customers that their data has been searched by the U.S. government. The company filed a civil suit on Thursday against the Justice Department, revealing that federal courts have issued nearly 2,600 orders prohibiting Microsoft from telling customers the government has taken their data in criminal investigations.
The tech giant wants a federal judge in Seattle to invalidate the law. Brian Smith, Microsoft’s president and chief legal officer, said in an interview that people or businesses whose data is being accessed by courts are unable to defend their rights as long as they are not aware they are under criminal probes.
More than two-thirds of the orders preventing Microsoft from notifying customers had no fixed end date, according to a report by the Washington Post. In these indefinite gag orders, the government is not required to notify the suspect.
“This means that we are forever barred from speaking, and our customers are forever barred from hearing that the government has accessed their email or other content,” Smith said.
He remarked that the problem was relevant to everyone entitled to enjoy the rights written in the Constitution.
Gag orders may be unconstitutional
Microsoft alleged that the secrecy orders violate customer’s Four Amendment right, which prohibits unreasonable searches. The company also claimed that the law violates Microsoft’s First Amendment right to talk to its customers and discuss the procedures the government conducts regarding investigations.
Jennifer Daskal, a law professor at American University, commented that Microsoft was right that an indefinite secrecy order violated the tech firm’s First Amendment. A former Justice Department official, Daskal warned there was a possibility that the target may never be told that courts are looking through his or her data, which may include emails and other personal information.
However, she clarified that there should not be any constitutional problem with time-limited gag orders, as long as there is a valid argument for a delay and the customer gets a notification in the end.
Congress is currently discussing a change in the law that would establish a maximum six-month delay in telling a customer that the government has sought his or her data. This would mark the end of the indefinite secrecy order. Still, Smith believes six months are way too long.
In any case, Microsoft also wants the court to prove “there is reason to believe” that notice will disrupt an investigation.
Source: Washington Post